National Center for Lesbian Rights
ACLU LGBTQ & HIV Project
Ogletree, Deakins, Nash, Smoak & Stewart PC
The Court reasoned that an employer necessarily relies on an employee’s sex if it penalizes that employee for “traits or actions it would not have questioned in members of a different sex.” Id. at 1737. For example, if an employer fires a male employee, but not a female employee, for being attracted to men, the male employee’s sex plays an “unmistakable and impermissible role in the discharge decision.” Id. at 1741. In other words, “if changing the employee’s sex would have yielded a different choice by the employer . . . a statutory violation has occurred.” Id. The employee’s sex is a “but-for cause” of his termination, even if other factors contributed to or played a more important role in the employer’s decision.
Although the claims in Bostock involved employment, the Court’s interpretation of what it means to discriminate “because of . . . sex” has broad potential implications for other areas of federal antidiscrimination law. According to Justice Alito’s dissent in Bostock, more than 100 federal statutes prohibit sex discrimination, including the Fair Housing Act (FHA), Title IX of the Education Amendments Act of 1972, and Section 1557 of the Affordable Care Act (ACA). As a general matter, the interpretation of Title VII often informs the interpretation of similar provisions in other federal civil rights laws, not just state analogues to Title VII.
Before Bostock, the Obama Administration took steps to interpret the sex discrimination provisions in
Some federal agencies, however, changed course during the Trump Administration. In Bostock, the U.S. Department of Justice (DOJ) argued that Title VII does not prohibit discrimination based on sexual orientation or gender identity. Even after the Supreme Court rejected its position, the Trump Administration continued to take regulatory actions and litigation positions inconsistent with Bostock.
On January 20, 2021, President Biden signed
EO 13988 directs federal agencies to assess all regulations, policies, and other actions taken under federal statutes that prohibit sex discrimination and to fully enforce those statutes to combat discrimination based on sexual orientation and gender identity. In doing so, agencies must ensure they are “accounting for, and taking appropriate steps to combat, overlapping forms of discrimination, such as discrimination on the basis of race or disability.” The order requires federal agencies to develop a plan within 100 days.
Federal agencies charged with enforcing federal sex discrimination statutes have begun implementing EO 13988. In February 2021, for example, the Department of Housing and Urban Development issued a
In addition, the federal government has recently withdrawn prior litigation positions in cases addressing the application of federal sex discrimination protections for transgender people. For example, in February 2021, the DOJ withdrew a statement of interest filed in a district court in Connecticut in Soule v. Connecticut Association of Schools, Inc., in which it had argued that Title IX’s prohibition of sex discrimination does not prohibit discrimination based on transgender status. The DOJ also
In the twenty years before Bostock, federal courts of appeals consistently applied Title VII to sex discrimination claims brought by transgender plaintiffs. In 2017 and 2018, two en banc courts of appeals also held that Title VII protects lesbian, gay, and bisexual workers as well. Some federal courts similarly interpreted the sex discrimination protections in Title IX, the FHA, and the ACA to bar discrimination based on gender identity or sexual orientation.
For example, since Bostock, two federal appellate courts have affirmed judgments in favor of transgender students who brought sex discrimination claims. In August 2020, in
In the same month, in
Bostock has also had an impact on FHA cases. For example, in July 2020, in Walsh v. Friendship Village of South County, the Eighth Circuit granted a defendant’s motion to vacate a judgment in its favor and remand in light of Bostock. Mary Walsh and Beverly Nance alleged that the defendant retirement community excluded them because they are a same-sex couple. In 2019, the district court
Several district courts have also considered claims under the Religious Freedom and Restoration Act (RFRA) challenging the potential enforcement of Title VII and Section 1557 of the ACA, as well as
In another RFRA case, U.S. Pastor Council v. Equal Employment Opportunity Commission, a district court in Texas denied the EEOC’s motion to dismiss RFRA and First Amendment claims by churches and businesses that they should be exempt from liability under Title VII for refusing to hire or for firing LGBTQ people, among other claims.
Bostock also has an impact on state law in states that do not explicitly prohibit discrimination based on sexual orientation and gender identity, as many state courts and civil rights agencies follow Title VII when interpreting similar provisions in state law. For example,
In February 2021, the House of Representatives passed the
For more information about the Bostock decision and its impact on other areas of federal sex discrimination law, register now for the authors’ upcoming PLI Program:
Julie Wilensky is a senior staff attorney with the National Center for Lesbian Rights. Her practice focuses on litigation and advocacy to ensure the equal treatment of LGBTQ people.
James D. Esseks is Director of the ACLU LGBTQ & HIV Project. He oversees litigation, legislative lobbying, policy advocacy, organizing, and public education around the country that seeks to ensure equal treatment of LGBTQ people and people living with HIV.
Nonnie L. Shivers is a Shareholder at Ogletree, Deakins, Nash, Smoak & Stewart PC. Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive and maximally compliant 50-state counseling and training; complex workplace investigations including at the C-Suite level; and litigating legally complex and factually challenging cases to defend employers actions.
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